SUPREME COURT OF QUEENSLAND

[1]  HOLMES & MUIR JJA:  On 9 August 2007, the applicant for leave to appeal against sentence pleaded guilty to one count of unlawful use of a motor vehicle.  She was sentenced to 18 months probation and 120 hours community service. A conviction was recorded.  On 8 February, 2008 she was brought back before the District Court for re‑sentencing, having contravened the community service order, and was re-sentenced to nine months imprisonment with a parole release date fixed at 8 May 2008. On 14 March 2008, this Court, by majority, granted her application for leave to appeal, allowed the appeal, set aside the sentence imposed below and substituted a sentence of 36 days imprisonment (already served) and two years probation. What follows are our reasons.

[2] The applicant was 18 years old at the time of the offence.  She was the passenger in a stolen vehicle which was pulled over by police.  She ran from the vehicle, but was apprehended.  In a record of interview she told the interviewing officers that she and the driver had come upon the vehicle parked beside the road; it was unlocked and damaged in a way that indicated it was stolen.

[3] The applicant had a criminal history which included a number of similar unlawful use charges, the first in March 2005.  In November 2005, she was dealt with for five such charges, together with two charges of stealing and one of unlawful entry of a vehicle with intent; the relevant offences being committed over a week in October 2005.  On each occasion, according to the prosecutor, she had been a passenger in a stolen vehicle driven by her boyfriend. She was placed on 12 months probation for those offences, which she then breached committing an offence of common assault.    Apart from those offences, the applicant’s criminal history contained entries for possession of property suspected of being stolen, committing public nuisance, unauthorised dealing with shop goods and stealing; most of those offences were dealt with by way of fine.  The learned District Court Judge sentencing her in the first instance to probation and community service emphasised that this was the applicant’s last chance; had it not been for her youth, co-operation and plea of guilty, he would have sent her to gaol. 

[4] When the applicant was brought before the court in respect of the contravention of the community service order, the Crown tendered a series of reports by probation and parole officers. The first of those reports, dated 17 October 2007, showed that she had failed to attend on 15 designated occasions over seven weeks and had performed no community service at all.  On the other hand, her compliance with the probation order was said to be satisfactory.  A supplementary report dated 6 February 2008, while raising some failures to attend, described the applicant’s response to supervision on probation as satisfactory.  However, she had completed only eight hours community service and had failed to attend on a further nine occasions. The author expressed the opinion that the applicant was suitable for further community based supervision, but not community service.

[5] Section 120 of the Penalties and Sentences Act 1992 (Qld) provides that the Court may revoke a community based order if satisfied that the offender is no longer willing to comply with it.  If the order is revoked under s 121, the Court may re-sentence the offender for the offence in any way in which it might have done had he or she just been convicted of the offence, but is required to take into account the extent to which the offender has complied with the order before its revocation. By virtue of s 109(3), where an offender is subject to both a probation order and a community service order, and contravenes one, the other is automatically discharged when he or she is re-sentenced.

[6] The learned sentencing judge dealing with the applicant under s 121 did not formally revoke the original orders, but as much seems to have been implicit in his proceeding to re-sentence.  He noted the number of times on which the applicant had failed to attend to perform community service, which he described as a “blatant disregard” of the order.  He went on to reiterate that she had shown “an absolute and total contempt and disregard for the community service order which was imposed”. Her failing to attend on so many occasions was something, he said, that he viewed with concern. 

[7] It was undoubtedly appropriate for his Honour to consider the contraventions of the order in deciding whether the applicant had shown herself “no longer willing to comply with the order” and also in determining whether she was an appropriate candidate for further community-based orders.  However, in proceeding to re-sentence, he said this:

“Because of the number of occasions on which you failed to attend the community service, and because of the effective absence of any serious explanation, or any explanation, for the great majority of those occasions and having regard to the comments that his Honour Judge Griffin made on the 9th of August 2007, I have decided to impose a period of imprisonment.

I take no joy in doing that for a young person who is only 20 years of age, but breaches of these orders cannot just be ignored, particularly blatant ongoing breaches of this kind. I order that you be imprisoned for a period of nine months, and I order that your parole release date be three months from today, which will be the 8th of May 2008.”

[8] The conclusion is inescapable, from those comments, that the learned sentencing judge was not merely imposing imprisonment because he perceived there to be no alternative option, but was taking the nature and number of breaches of the order into account as factors themselves warranting a sentence of imprisonment.  That was an error: his Honour was not dealing with the applicant under s 123 for a contravention of the order; he was re-sentencing her for the offence of unlawful use. The breaches could not be regarded as aggravating factors in sentencing for that offence.  Given the clear error, it fell to this Court to re-exercise the sentencing discretion.

[9] In their submissions below, both the Crown and the defence suggested that the proceedings might be adjourned to give the applicant the opportunity to show whether she would comply with the order, encouraged by the prospect of being re-sentenced.  As a matter of common sense, there was a good deal to be said for that course in establishing whether the applicant was indeed incorrigible, but it was no longer open here. Having regard to the sentencing principles in s 9(2)(a) of the Penalties and Sentences Act, and taking into account the applicant’s youth, the nature of the offending, her co-operation with the administration of justice, the fact that she has not been convicted of anything in the 17 months since this offence, and her compliance with the probation order, we concluded that the sentence which ought to be substituted was one of 36 days imprisonment (the time already served) and two years probation.

[10] CHESTERMAN J: The facts and background relevant to this application for leave to appeal against sentence have been set out in the judgment of Holmes JA which I have had the benefit of reading. 

[11] The applicant’s submission emphasised that part of his Honour’s reasons in which he said:

‘Because of the number of occasions on which you failed to attend ... and ... the absence of ... explanation ... I have decided to impose a period of imprisonment’

to make the submission that the sentencing judge ‘placed too much weight on the breaching conduct’, and that the sentencing judge had imprisoned the applicant as punishment for the breach of the community service order, not for the original offence.

[12] When the sentencing remarks are read in context, and regard is had to the course of argument before his Honour, I cannot accept that the sentencing judge made the error attributed to him by the applicant.  A fair reading of the record does not establish that his Honour did otherwise than re-sentence the applicant for the original offence and not for her breaches of the order that she perform 120 hours of community service.  Nor do I accept that his Honour increased the penalty because of those breaches.

[13] When imposing the original sentence on 9 August 2007 Judge Griffin said:

‘... Stephanie Jean Mathers you are so close to going to jail;  I cannot express it in words.  You are within an inch of ... going to jail for your behaviour.’

Because of the applicant’s early plea of guilty, and co-operation with the investigation, as well as her youth, his Honour instead imposed periods of probation and community service.  Having explained the nature of those orders to the applicant, he asked:  ‘Are you prepared to perform 120 hours of community service?’.  She replied affirmatively and the learned judge went on:

‘...  If you breach any of the conditions of either of those orders you will be brought back before the court and will be dealt with again for this offence.  If you come back before me you will go to jail ...’.

[14] During the course of the subsequent proceedings the prosecutor pointed out to the sentencing judge that the applicant had failed to attend and perform community service on 25 occasions without reasonable excuse, and that a number of those occasions occurred when the applicant knew that she was to be dealt with for her previous refusals to perform the order, the consequence of which had been explained to her graphically by Judge Griffin.  The prosecutor then proposed alternative courses to the judge:  (1) that the applicant be re-sentenced for the original offence or (2) that the proceeding be adjourned for a month or so to ascertain whether the applicant would at last obey the order and perform community service.

[15] The prosecutor said:

‘The alleged breaches of this order arises from the offender’s complete disregard to the directions ... given ... by the community services officer ... .  She has consistently and persistently failed to attend when directed to undertake her community service. ...  An offender who contravenes her requirement of a community based order, as the offender here has, commits an offence and then can therefore be re-sentenced for the original sentence.  ...  It is the Crown’s submissions that in accordance with s 126(4) of the Penalties and Sentences Act that the offender before you today ... be re-sentenced for the original offence ...’

[16] The prosecutor then drew attention to the circumstances of the offence and of the applicant, and pointed out that if his Honour was ‘minded to re-sentence’, the probation order would be discharged.  She continued:

‘It is the Crown’s respectful submission that even with the offender’s youth she has left no other option but for your Honour to impose a short term of actual imprisonment although ... it is not uncommon ... for a term of suspended imprisonment to be imposed ...’.

Later, in answer to a question from the judge, the prosecutor submitted that the appropriate term of imprisonment was ‘somewhere in the vicinity of three to six months ... as a head sentence.’

[17] The applicant’s solicitor did not controvert the submission that an appropriate course would be to re-sentence the applicant to a term of imprisonment.  Nor did he challenge the term proposed.  His submissions were directed towards persuading the sentencing judge that another course was also appropriate and should be preferred.  It was to allow the applicant to comply with the community service order or to be subject to a longer period of probation.  He pointed out that the applicant had belatedly begun performing the service and wished to be given a further opportunity to complete her obligation.  He said:

‘If your Honour is not inclined to give her another opportunity, and I can see that your Honour might take the view that she’s had her chances, ... there is another opportunity available ... that doesn’t involve imposing a term of imprisonment and that option is to re-sentence her to lengthier probation.’

[18] It was in the context of that debate that his Honour addressed the applicant:

‘... Judge Griffin informed you that you were very, very close to going to jail. ...  At the conclusion of his Honour’s judgment ... he told you in express terms that were you to come back ... for a breach of the ... community service order, you would go to jail.  ... Your performance with respect to the community service order has been almost non-existent.’

[19] The sentencing judge then described the occasions on which the applicant had not complied with directions to perform community service, and referred to her criminal history, noting that:

‘... There are repeated incidents of your engaging in this criminal behaviour.’

His Honour noted that the applicant had not re-offended which was ‘a good point’ in her favour and he referred again to the applicant’s ‘absolute and total contempt and disregard for the community service order.’  He found that there had been a breach of the order and continued:

‘In my view it is appropriate that I re-sentence you for the original offence ... the unlawful use of a motor vehicle ... .  Because of the number of occasions on which you failed to attend the community service and because of the effective absence of any serious explanation for the great majority of those occasions and having regard to the comments that his Honour Judge Griffin made ... I have decided to impose a period of imprisonment.’

[20] A fair reading of his Honour’s remarks indicates that the number and persistence of the applicant’s breaches of the order persuaded him to adopt the first, rather than the second, of the options proposed by the prosecutor, or the course proposed by the applicant’s solicitor.  The remarks are an explanation why he thought he should re-sentence the applicant, and why in doing so, he should order her imprisonment.  His Honour clearly thought that the applicant had disentitled herself to any further indulgence from the Court by reason of her contumelious disregard for its order.  He cannot be criticised for that approach.  The applicant had provided ample reasons for thinking that she would not comply with a community based order.  Once that conclusion was reached Judge Griffin’s remarks made an order of imprisonment inevitable.  His Honour’s remarks indicate no more than that.

[21] The approach taken by the sentencing judge to re-sentence the applicant and the decision to imprison her fell entirely within the range of the available sentencing discretion.  A short term of imprisonment would clearly have been an appropriate punishment when the applicant was first dealt with.  When the applicant had, by her conduct, indicated the inappropriateness of the community based order imposed instead, the range of sentencing options available on the re-sentence was narrowed.  Imprisonment was the only realistic option.  A punishment in addition to probation was clearly called for but no penalty such as an intensive correction order which involved any element of the performance of community service could be imposed because of the applicant’s self-indulgent refusal to perform it. 

[22] One criticism can be made of the sentence.  A term of nine months was greater than the range submitted by the prosecutor and accepted, at least tacitly, by the applicant’s solicitor.   Given that fact and the points in the applicant’s favour, a period of nine months imprisonment was, I think, excessive.

[23] I would give the applicant leave to appeal and allow the appeal to the extent only of substituting a term of six months imprisonment for the nine months imposed.  I would not disturb the parole release date set by the sentencing judge.